15 June 2007 № D-200/2007
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 S.Y. Danilyuk, K.I. Kenik, V.V. Podgrusha, A.G. Tikovenko, R.I. Filipchik, V.Z. Shuklin, has examined application that specifies the imperfection of the norms of the legislation related to the safeguarding of the right of individual persons to legal aid in the administrative process.
Having examined the provisions of the Constitution of the Republic of Belarus, the Administrative Procedural Code of Executions of the Republic of Belarus (hereinafter is also referred to as APCE), the Criminal Code of Procedure of the Republic of Belarus (hereinafter is also referred to as CCP), the Civil Code of Procedure of the Republic of Belarus, other normative legal acts of the Republic of Belarus the Constitutional Court found the following.
According to part one of Article 62 of the Constitution everyone shall have the right to legal assistance to exercise and defend his rights and liberties, including the right to make use, at any time, of the assistance of lawyers and one's other representatives in court, other state bodies, bodies of local government, enterprises, establishments, organizations and public associations, and also in relations with officials and citizens.
Article 1.4 of APCE shall envisage that the protection is the procedural activities executed by an advocate for the purposes of the safeguarding of the right, liberties and legitimate interests of the individual person in relation to whom the administrative process shall be conducted. The persons, in relation to whom the administrative process shall be conducted, shall be the individual or juridical persons in relation to whom the court or the body conducting the administrative process shall find their guilt of commission of an administrative offence.
In accordance with point 1 of Article of 2.8 APCE the individual person, in relation to whom the administrative process shall be conducted, shall have the right to defence. The person may exercise this right both by himself/herself and with help of a defend counsel according to the procedure established by APCE.
Point 1 Article 4.5 of APCE shall establish that rendering of legal aid for the individual person, in relation to whom the administrative process shall be conducted, may be exercised by a defence counsel and the legal aid for the victim, as well as for the individual person - entrepreneur in relation to whom the administrative process shall be conducted may be exercised by a representative.
Point 2 of the specified Article shall envisage that advocates who are citizens of the Republic of Belarus and advocates who are citizens of the other states in accordance with international treaties of the Republic of Belarus may take part in the proceeding of the case on the administrative offence in the capacity of a defence counsel. According to point 4 of the specified Article advocates and other persons to whom a victim entrusts to present his/her interests may take part in the administrative process in capacity of a representative of the victim.
Thus, the specified norms of APCE specify the different scope of rights for the rendering of legal aid for the participants of the administrative process: the individual person, in relation to whom the administrative process shall be conducted, may exercise his/her right by himself/herself or may use legal aid of a defence counsel who may be strictly an advocate; at the same time, a victim shall have right to use the services of the representative who may be advocates and other persons whom a victim entrusts to present his interests. According to Article 1.4 and point 4 of Article 4.5 of APCE next of kin of a victim and other members of his/her family shall be his/her representatives. Thereby, under violation shall be the stipulated by point 4 Article 2.12 of APCE principle of the equality of all the persons participating in the administrative process before the law and their right without any discrimination to equal protection of their rights and legitimate interests.
The Constitutional Court emphasizes also that in its turn in CCP in spite of the gravity of the possible consequences (the conviction for the deprivation of freedom and the application of other measures of punishment) the legislator envisaged the wider circle of persons exercising defence of the accused than the circle for the person in relation to whom the administrative process shall be conducted. Both CCP and APCE enshrine the principle of equality before the law of all the persons participating in the criminal process and the right without any discrimination to equal protection of their rights and legitimate interests (part 1 of Article 20 of CCP). At the same time, according to part 3 of Article 44 of CCP on petition of the accused on the definition of the court in the capacity of a defence counsel in the court may be allowed not only the advocate but also one of next of kin of the accused. It shall be taking into account that if with regard to the person who committed the crime the criminal proceeding was subject to be discontinued by the court or by the prosecutor and according to point 3 of part 1 of Article 30 of CCP the measures of the administrative punishment has been applied to him/her, than his/her right to secure the protection is subject to reduction. For example, if the close relative of the accused took part in the criminal process discontinued afterwards due to the application of measures of the administrative punishment as the defence counsel of the accused, the close relative shall lose the right to defend the specified person in the administrative process, though the close relative exercised of the defence in the criminal proceeding previously and familiarized himself/herself with all the circumstances of a criminal case. In addition, the foregoing situation may be resulted in delay of the consideration of the case as it will require to take to participation of the other person (in particular, an advocate) in administrative process, familiarize themselves with the materials of the case, exercise of other measures.
In opinion the Constitutional Court norms of APCE do not secure the equality of participants of administrative process due to impossibility of participation of the representatives with the defence counsel (advocate) in the protection of an individual person in relation to whom the administrative process shall be conducted, as well as do not secure the correlation between the criminal procedural and administrative procedural legislation.
On the basis of the abovementioned and guiding by Articles 40 and 116 of the Constitution, Article 22 of the Code of the Republic of Belarus on judicial system and status of judges, the Constitutional Court
RULED:
1. To propose the House of the Representatives of the National Assembly of the Republic of Belarus for the purposes of securing of the equality of the rights of rendering of legal aid for both victims and individual persons, in relation to whom the administrative process shall be conducted, to make the relevant alterations and addenda into the Administrative Procedural Code of Executions of the Republic of Belarus.
At the same time, it would be reasonable to mutually regulate the norms of the criminal procedural legislation to the norms of the Administrative Procedural Code of Executions of the Republic of Belarus.
2. The present Decision shall come into legal force from the date of its adoption.
3. To publish the present Decision in accordance with the legislation.
Presiding Officer —
Chairman of the Constitutional Court
of the