News
On 27 November 2015 the Constitutional Court of the Republic of Belarus took the Decision “On Legal Regulation of Initiation of Private Criminal Prosecutions” (reporting judge – Tadeush V. Voronovich)
The proceedings were initiated by the Constitutional Court in accordance with Article 158 of the Law of the Republic of Belarus “On the Constitutional Proceedings”.
When considering the case the Constitutional Court proceeded from the following.
The Constitution of the Republic of Belarus stipulates that 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).
The Criminal Procedure Code of the Republic of Belarus (hereinafter – the CPC) establishes a list of offences that result in initiation of private prosecutions (Article 26.2).
A criminal case of private prosecution shall be initiated by an individual affected by the crime, his legal representative or a representative of a legal entity by submitting an application on the offence committed against him to the district (city) court; this application shall contain, among others, information about the person who has committed the offence; in the absence of such information the Court shall send the application back to the applicant (Articles 426.1, 426.2, 427.1 of the CPC).
Having examined provisions of the law on criminal procedure the Constitutional Court came to the conclusion that the absence of rules in the CPC obliging the prosecuting body to initiate private criminal prosecutions in the absence of information about the person who committed the crime, as well as rules providing for the possibility of initiation of such criminal proceedings in case of the death of the victim of the crime indicates a gap in constitutional and legal regulation of public relations concerning criminal proceedings and examination of criminal cases of private prosecution.
According to the Constitutional Court the power granted to individuals to initiate private criminal prosecutions and to execute criminal proceedings shall be considered as an additional guarantee of protection of the legitimate rights and interests of victims which does not exempt the State from carrying out the constitutional functions and obligations to ensure the rule of law and legal order, human rights and freedoms, realisation of the right to judicial protection guaranteed to everyone. In this context the State shall be obliged to provide access to justice for every victim of the crime, and in case of the death of such person – to guarantee judicial protection of his honour and dignity.
In order to ensure the constitutional principles of the rule of law and legality, to implement the constitutional right of everyone to judicial protection the Constitutional Court recognised the necessity to eliminate a legal gap in constitutional and legal regulation of initiation of private criminal prosecutionsby making addenda and alterations to the Criminal Procedure Code of the Republic of Belarus obliging the prosecuting body to initiate private criminal prosecutions in the absence of information about the person who committed the crime mentioned in Article 26.2 of the Criminal Procedure Code, as well as to initiate private criminal prosecutions in case of the death of the victim of the crime on the basis of applications submitted by his/her adult close relatives or family members.
The Council of Ministers of the Republic of Belarus is proposed to prepare a draft law on making alterations and addenda to the Criminal Procedure Code of the Republic of Belarus and to submit it to the House of Representatives of the National Assembly of the Republic of Belarus according to the established procedure.