On 20 January 2016 the Constitutional Court adopted 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 2015”.

On 22 January 2016 the press conference of Chairman of the Constitutional Court of the Republic of Belarus Petr Miklashevich on the theme “On Constitutional Legality in the Republic of Belarus in 2015” 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 2015”, adopted by the Constitutional Court on 20 January 2016.

1. The most important legal form of expressing social accord, unity of the people is the Constitution of the Republic of Belarus which establishes the foundations of the constitutional system, the fundamental principles of the organisation and functioning of the Belarusian society and the State.

By implementing the constitutional provisions on the national and state sovereignty, the Belarusian people as the sole source of state power and the bearer of sovereignty in the Republic of Belarus during the past democratic elections elected Alexander Lukashenko the President of the Republic of Belarus and confirmed his aspiration for preserving the achieved social accord and stability, ensuring consistent and dynamic development of the society and the State on the constitutional basis.

2. The Constitution is the basis of the legal system, its rules have the constituent character and direct action, they develop in fact and get real implementation in the legislation and law enforcement.

It shall be borne in mind that further development of the constitutional values, principles and rules in the legislative process contributes to sustainable and consistent strengthening the legal basis for the development of Belarus as a democratic state based on the rule of law.

The activities of the Constitutional Court as a constitutional review body in the past year was aimed at protecting the constitutional order, human rights and freedoms, ensuring the supremacy of the Constitution, maintaining constitutional legality in the rule-making and law-enforcement.

3. When assessing the constitutional legality in the Republic of Belarus in 2015, the Constitutional Court notes implementation of the constitutional provisions in the legal system, development of the constitutional principles and rules, as well as the generally recognised principles of the international law in the legislative regulation of public relations, orientation of state bodies and officials toward maintenance of constitutional legality, ensuring a more complete exercise of the constitutional rights and freedoms of individuals in all spheres of life and activities of the society and the State.

4. In the issue of the obligatory preliminary review 50 laws adopted by the House of Representatives and approved by the Council of the Republic of the National Assembly before their signing by the President of the Republic of Belarus in the past year were recognised, in whole, by the Constitutional Court as conforming to the Constitution.

However, by means of legal positions the Constitutional Court pointed out in its decisions certain shortcomings in some laws and orientated state bodies and other organisations, officials and individuals towards the constitutionally regulated approach to the application of legal rules in practice taking into account the requirements of the Constitution.

The Constitutional Court recommended to the legislator to ensure in full effectiveness of the legal mechanism of exercise of the constitutional rights and freedoms of individuals, predictability and ensuring of the legal regulation of social relations when improving the legislation.

5. In 2015 the Constitutional Court made some decisions on elimination of gaps, collisions and legal uncertainty in normative legal acts.

Such proceedings in accordance with Article 158 of the Law “On the Constitutional Proceedings” shall be initiated on the basis of applications of state bodies, other organisations and individuals containing relevant information and submitted to the Constitutional Court.

On the basis of such applications in 2015 the Constitutional Court made decisions on the need to eliminate gaps in the Criminal Procedure Code of the Republic of Belarus concerning legal regulation of:

- exercise the right of individuals acting as witnesses in criminal proceedings to competent legal assistance in view of absence of such a provision directly enshrining the participation of a lawyer (an advocate) in criminal proceedings as the representative of a witness;

- ensuring the right of everyone to judicial protection in private prosecutions in the absence of information about the person who committed the crime as well as in case of the death of the victim of the crime.

6. In 2015 five decisions of the Constitutional Court on elimination of gaps, collisions and legal uncertainty in normative legal acts were executed, four legal positions stated in the decisions taken in the exercise of obligatory preliminary review of the constitutionality of laws were implemented. Thus:

in order to eliminate a gap in the legislative regulation of the implementation of Article 57 of the Constitution providing for the possibility of alternative service the Law of 4 June 2015 “On alternative service” was adopted;

with the purpose of the due exercise of the constitutional right of individuals to social security the procedure for confirming the identity of individuals who do not have passports for the purpose of pension provision and procedure for payment of pensions to such individuals was specified in the Resolution of the Government of 25 February 2015;

Legal positions stated in the decisions of the Constitutional Court were taken into account by rule-making bodies in a number of other normative legal acts.

7. This Message contains the following conclusions:

Firstly, taking into account globalisation, integration, dynamism and interdependence of public and intergovernmental processes, the focus in the field of rule-making shall be orientated to the exercise and security of legal regulation based on the supremacy of the Constitution.

As an integral part of the principle of the rule of law, the principle of legal security requires that legislative acts shall be aimed at achieving and ensuring the constitutionally significant goals and interests, fully and specifically regulate the most important public relations, provide for appropriate mechanisms for the exercise of the rights and freedoms of individuals, strengthening the constitutional order.

Secondly, in the course of legal ensuring of economic relations at the present stage it shall proceed from the fact that stable and dynamic development shall be based on the fundamental constitutional provisions granting equal rights to everyone to carry out economic and other activities, guarantees of equal protection and equal conditions for development of all forms of property, equal opportunities for free use of abilities and assets for entrepreneurial and other economic activities and shall provide for the obligation of the legislator to establish a clear and effective legal mechanism for economic actors on the constitutional basis.

The Constitutional Court draws attention to the need for further development of the commercial law aimed to promote the formation of infrastructure of the goods market, the establishment of stable trade and economic relations between producers and consumers. In order to provide a modern legal ensuring of economic relations there is an objective need for the modernisation of civil legislation through the elaboration and adoption of the new Civil Code which shall including the commercial law as a separate field.

Thirdly, enshrining at the constitutional level of the obligations of the State to create conditions for free and dignified development of the personality, to guarantee the right of everyone to a decent standard of living is crucial to identify the essence of a social state.

The Constitutional Court draws attention to the fact that the legislator when determining the mechanisms of the exercise of the social rights of individuals in accordance with his constitutional powers shall strictly observe the limits of discretion in the legislative process, prevent distortion of the essence of a social State and, on the basis of economic and financial capacity of the State, logically orientate legal regulation on improving efficiency of state support in the social sphere, targeting measures of social protection of the population, as well as on achieving the balance of interests of the individual, the society and the State.

Fourthly, implementation of the principle of legal security in the activities of the courts of general jurisdiction is aimed at strengthening the role of the judiciary in guaranteeing judicial protection of the constitutional rights and freedoms of individuals, ensuring stability in the society and the State.

The Constitutional Court believes that for the purpose of further development of the constitutional principle of equality of all before the law, ensuring equal access to justice elaboration and adoption of a uniform procedural law regulating civil and economic cases is required.

Higher level of legal security of the constitutional right of individuals to judicial protection in the administrative proceedings shall be orientated to creation of legal mechanisms for the timely and effective restoration of violated rights. At the present time, specific character of the relationship between the individual and the State requires establishment of specialised administrative proceedings determining the procedure of consideration of disputes between individuals and the State represented by state bodies and officials.

Fifthly, the most substantial element of the national sovereignty is the legal sovereignty, which in domestic policy is manifested in functioning of the state power on the basis of the supremacy of the Constitution, and in foreign policy – in recognition by the state of generally recognised principles of international law.

At the present time, given the participation of the Republic of Belarus in integration processes, it is important to preserve the constitutional identity, the sovereign right of the Belarusian people to determine their own path of development.

Taking into account the constitutional case-law of European countries there are sufficient reasons to develop a legal mechanism allowing the Constitutional Court to consider supranational legal acts concerning the foundations of the constitutional system, the constitutional rights and freedoms of individuals and the guarantee of their exercise in order to ensure a balance of national and supranational interests.

Sixthly, an indispensable condition for sustained and dynamic development of the State and society is ensuring the legal security in all fields of public life.

The predictability of the legislative process, stability and completeness of legal regulation, legal certainty, accessibility and clarity of the legislation strengthen confidence of individuals in the state power, confidence in the exercise and protection of rights and freedoms, contribute to ensuring the sovereignty and national security, effective functioning of the legal system, observance of a fair balance of private and public interests.

The constitutional legality, as a key element of constitutionalism, is ensured by daily activities of all state bodies, officials, individuals and civil society institutions, determines the inviolability of the foundations of democracy and constitutional order.