2 February 2005 № D-183/2005
The Constitutional Court of the Republic of Belarus, comprising of the Presiding Officer - Chairman of the Constitutional Court G.A. Vasilevich, Deputy Chairman A.V. Maryskin, judges, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, R.I. Filipchik, V.Z. Shuklin, has considered the issue on constitutional legality in the Republic of Belarus, guiding by Article 44 of the Law "On the Constitutional Court of the Republic of Belarus" and Article 80 of Rules of Procedure of the Constitutional Court,
RULED:
1. To adopt Message of the Constitutional Court of the Republic of Belarus to the President and the Chambers of the Parliament of the Republic of Belarus "On constitutional legality in the Republic of Belarus, 2004" (text is enclosed).
2. To publish the Message "On constitutional legality in the Republic of Belarus, 2003" in newspapers "Zvayzda" and "Narodnaya gazeta" in ten days period of time from the date of adoption, as well as in National register of legal acts of the Republic of Belarus and in Bulletin "Vesnik Kanstytutsijnaga Suda Respubliki Belarus".
Presiding Officer —
Chairman of the
of the
To President
of Republic of Belarus
To House of Representatives
of National Assembly
of Republic of Belarus
To Council of Republic
of National Assembly
of Republic of Belarus
MESSAGE OF CONSTITUTIONAL COURT OF REPUBLIC OF BELARUS
ON CONSTITUTIONAL LEGALITY IN REPUBLIC OF BELARUS, 2004
In social and political life of the Republic of Belarus the year 2004 was commemorated by a number of significant events. That year the Constitution of the Republic of Belarus has celebrated its 10 anniversary, there were held the Republican referendum and regular Parliamentary elections.
Formation of the Republic of Belarus as the state ruled by law requires further improvement of its law system. This shall presuppose the presence of development of the legislation of high level, realization of fundamental constitutional principles in regulation of public relations and observance of constitutional regulations for all the state bodies, organizations, officials and citizens.
The Republic of Belarus has the necessary law basis for the preparation of the enforceable enactments. The President of the Republic of Belarus has approved the Concept of improvement of the legislation, the Parliament has adopted the Law "On enforceable enactments of the Republic of Belarus", Decree of the President of the Republic of Belarus of 11 August 2003 No. 359 has approved the Rules for preparation of draft enforceable enactments, the House of Representatives and the Council of the Republic of the National Assembly of the Republic of Belarus have adopted the Rules of Procedure. The given documents contain the main requirements on preparation, adoption and execution of the enforceable enactments.
The state acquires the experience of law creation and law application. The majority of the legislative acts was adopted in accordance with the norms of the Constitution and international law standards and is executing properly in practice. They secure rather full regulation of public relations. The legal base shall make it possible for all branches of state power to realize their powers, to secure the protection of the rights, freedoms and lawful interests of citizens.
Integral element of a democratic social state ruled by law shall be the activities of the constitutional courts as the specialized bodies of the constitutional control which are called to promote the improvement of the national law system and their certain branches, the development of law ideology and law consciousness.
The Constitutional Court of the Republic of Belarus, as equivalent bodies of constitutional control of modern European states, shall have the right to verify the constitutionality of enforceable enactments in the state. The Constitutional Court as the specialized body, by force of the tasks with which the Court is entrusted by the Constitution, is called within its competence and the admissible for him forms to take measures as regards securing the constitutional legality.
The reason for participation of the Constitutional Court in settlement of law disputes by means of constitutional justice were the proposals of the subjects specified in part four of Article 116 and in part four of Article 122 of the Constitution. Moreover, in pursuance of Article 40 of the Constitution, provisions of the Law "On applications of citizens" and other acts of current legislation, the citizens shall have the right to forward individual and collective applications to the state bodies, as the Constitutional Court is, and they must give them the reply on the matter of fact within the terms specified in law. The obligation to carry out reception of citizens for consideration of their applications is vested in the officials by the specified Law, by Order of the President of the Republic of Belarus No. 128ord. of 29 April 1997 "On measures on improvement of work with applications of citizens", other legal acts, concerning improvement of work with applications of citizens.
Applications of citizens is one of the most important forms of interaction of the state and citizens, realization by citizens of the right to participation in the solution of state matters and in the administration of the affairs of the society enshrined in Articles 37 and 40 of the Constitution. The Constitutional Court supports the efforts of the Head of the state and the Parliament on considerable improvement of the work with the applications of citizens.
In 2004 their individual and collective complaints made in total more than 5 thousand citizens, about 500 citizens have been received at personal reception.
Citizens make their application to the Constitutional Court both as regards the issues of law application and as regards the verification of the very constitutionality of enforceable enactments. The applications emphasizes imperfection of the norms of law and improper practice of their performance. Very often the citizens forward to the Constitutional Court their repeated applications after examination of their issues in other instances, in judicial bodies included.
Analysis of applications of citizens shall signify that the society has realization of the value of the principles of the constitutional system, comprehension of the fact that the state is called to serve people, to protect and to safeguard their rights, freedoms and lawful interests. In the majority of their applications citizens shall appeal to the authority of the state, which, in their opinion, must restore the lawfulness and fairness. Study in the Constitutional Court of the materials submitted by the citizens in a number of cases indicated that, in fact, their applications are well grounded, but other state authorities made no proper their examination. Thus by making analysis of the Provision on procedure of reception of citizens in Minsk city executive committee (Decision of Minsk city executive committee of 1 October 2002 No. 1430) the Constitutional Court in its Decision of 15 April 2004 has found the given Provision to be unconstitutional in part, which practically excludes the possibility of oral application of citizens at personal reception, as well as in part stipulating the necessity of motivation by the citizens of the lawfulness of their requirements. Similar Decision was delivered by the Constitutional Court of 23 August 2004 with respect to Decision of Gomel oblast executive committee of 17 April 2003 No. 267. Decisions of the constitutional Court in question have been executed.
The Constitutional Court as one of the bodies of the state power which under Article 59 of the Constitution are entrusted with the obligation to take the measures to create the domestic and international order necessary for the exercise in full of the rights and liberties of the citizens in the Republic of Belarus that are specified in the Constitution in its activities is striving to securing the constitutional legality in the country. Different forms have been used for this: there were adopted judgements, there were forwarded the proposals to other instances, including the proposals on improvement of the legislation, there has been stated the position of the Court as regards the issues raised etc.
As a whole it may be noted the positive dynamics of forming law system. However, due to the necessity of its further improvement, the Constitutional Court in the present Message shall pay attention, first of all, to the defects and omissions in rule making and law applying activities which sometimes are of no deep nature. Their elimination requires no additional costs and possibly on condition of proper organizational and law work, rising of responsibility of officials for preparation of draft enforceable enactments and implementation of the legislation.
For successful forming of the Republic of Belarus as the state ruled by law it is important to secure formation of modern system of legislation grounded on constitutional principles and norms. Acts of current legislation must draw up based on the Constitution the law pyramid without contradictions and gaps.
Constitution enshrines mutual responsibility of the state and the citizens. State shall have the right to call to liability of citizens violating the law, and citizens, in their turn, by force of Articles 1, 59 and other Articles of the Constitution shall have the right to expect that the state will carry out legal regulation in accordance with the rules it defines. In this connection, in the opinion of the Constitutional Court, it must be strengthened the responsibility of the officials for securing the constitutional legality both in law making and law application.
Head of state has pointed out the significant problems in rule making and rule application in his presentations in the Parliament on 18 November 2004. Elimination of the shortcomings in the given sphere would be conducive for the strengthening of constitutionality, i.e. forming of such a law order for functioning of a democratic state ruled by law where there is a real securing of the constitutional human rights and freedoms as a supreme goal and value of the state, optimum balance of interests of the society, citizens and state on the grounds of good, equality and fairness.
For the strengthening of the constitutional legality it is conducive the forming of the balanced system of the legislation with clear fixation of the rights and obligations of citizens and natural persons, with distinct specification of relation and legal force of the acts of the same and different levels, as well as acts adopting by the same bodies taking into account the time period of their adoption, circle of persons which they cover, there is the single apparatus.
Creation of rather intensive legal base both on the whole and in certain law branches needs precise co-ordination of enforceable enactments with constitutional principles and norms. High level of quality of the legislation shall presume the absence in it of any ambiguity, and that is the necessary condition for securing unique understanding of legal norms and their practical application. At the same time, the activities of the Constitutional Court as regards verification of the constitutionality of enforceable enactments, the complaints of citizens shall signify about numerous shortcomings in the given sphere.
The Constitutional Court emphasizes that the constitutional norms in the field of human rights and freedoms have not become directly effective in full. Very often their application shall depend on how full they are reproduced, or as a whole on the knowledge and persuasion of the official that the Constitution under the conditions of post-Soviet period should be comprehended as really effective document. Up to the present moment it is showing up misunderstanding by individual officials of the significance of the constitutional norms, their priority place in legal system, the necessity of faultless execution of the fixed in Article 137 of the Constitution rule of the supreme legal force of the Basic Law.
Unfortunately, it has to state that for the legal regulation of public relations are still typical such phenomena as complexity and uncertainty of law requirements; ill-time making of the relevant alterations into the legislation due to adoption of the acts of more higher legal force; giving the enforceable enactments aggravating legal position of the subjects of law, retrospective effect; exceeding by law creating bodies of the limits of their competence; gaps in law regulation; contradictoriness of the practice of application oа the acts of legislation; untimely explanation of the legislation, especially those of them with conflicting norms.
Temporal and content's inconsistency of the acts is typical for many of branches of law. However, it is inadmissible in particular as regards responsibility (administrative, criminal, property), and that, unfortunately, is still taking place.
Many of the branches of legislation shall have the acts with the provisions, which are in contradiction to each other or which are notable for their bulky and complex character of law regulation.
As a rule, the law maker and other subjects of rule making while adopting a new enforceable enactment shall limit themselves to the instruction on bringing the acts of legislation into line with the enforceable enactment in question. Moreover, as it has been found by the Constitutional Court in its decisions, those instructions, including those of them given while adopting the codes, laws, were executed untimely or remained without realization. In those instances very often it took place the situations where equally with the norms of the new acts, there were in progress the norms of previously adopted acts and that is resulted in competition of norms, in holding out illegal law applying practice, and in certain instances - in obvious violation of the rights and freedoms of citizens and economic entities or in impossibility to use the right which is already fixed in the act of more higher legal force.
Rule making activities may be improved significantly by observing the most important requirement as insertion in the draft of the norms on necessary alterations of other effective acts of the similar level.
In practice there are the instances where the enforceable enactments are adopting on the issues the necessity for solution of which has been seasoned long ago, and that is resulted in giving those acts the retrospective effect. That shall signify that the bodies bearing relation to elaboration of enforceable enactments, and the persons initiating their adoption make no timely and adequate response to the needs of the state and the society and do not anticipate them and shall impel the subjects of power to adopt the relevant acts by force of circumstances.
Such a situation is at variance with the rule enshrined in part six of Article 104 of the Constitution and in part one of Article 67 of the Law "On enforceable enactments of the Republic of Belarus" under which an enforceable enactment shall have no retrospective action unless it extenuate or revokes the responsibility of citizens or in some other way improves their position. Norms of Article 67 of the specified law on the right of the rule making body to fix the term of enforcement of an act are applicable, in the opinion of the Constitutional Court, while observing the requirements of Articles 104 and 23 of the Constitution, i.e. if that is caused by objective causes. The Constitutional Court has pointed out this circumstance in its decisions.
The Constitutional Court, while carrying out control over the constitutionality of legal norms, which form the ground of law applying decisions, is proceeding from the fact that the law requirements and decisions based thereon must be based on the principles of reasonableness and fairness. Participants of law relations must be sure in stability of their status, in guarantee of the granted them rights and freedoms, as well as their protection. The Constitutional Court emphasizes that in case of restriction of already acquired rights it shall be taken into account, in particular, the principles of fairness and proportionality, maximum consideration of private and public interests.
Predictability and reasonable stability of normative regulation, which is founded on the combination of the interests of the state and citizens, as well as economic entities will both promote their protection and strengthen the confidence of citizens in the state.
This position of the Constitutional Court is expressed, in particular, in its Judgment of 20 February 2004 "On the conformity between the Constitution of the Republic of Belarus, the Law of the Republic of Belarus "On public health" and Provision on licensing medical activities and Provision on licensing pharmaceutical activities approved by Resolution of the Council of Ministers of the Republic of Belarus of 20 October 2003". The Constitutional Court, having found to be justified state regulation in the sphere of carrying out medical and pharmaceutical activities, and that is conditioned by the necessity of securing the protection of life and health of citizens and making for those purposes of higher demands with respect to the subjects which carry out the given activities, paid attention to the fact that the economic entities which were granted licenses for carrying out those activities on the grounds of regulations of previously effective legislation, there should be granted real possibility for obtaining license in accordance with the new requirements.
The Constitutional Court has also emphasized the inadmissibility of negative consequences for the economic entities as liquidation (suspension of activities) on the reasons, which they could not foresee at the moment of creation. The Constitutional Court shall also note the efficiency of execution of the given Judgment both by the Government and by the Ministry of Public Health, which found admissible for all the interested participants the settlement of the emerged problems in the shortest time.
In its decisions the Constitutional Court has also emphasized that the law making state bodies very often take decisions with exceeding of the limits of their competence. In particular, it is revealing in the field of local government and self-government, first of all, as regards the issues of taxation. Legal position of the Constitutional Court as regards the indicated problem is grounded on the provisions of Article 121 of the Constitution and consists of the fact that the payers of local taxes and dues, as well as the main elements of taxation (object, tax base, rates etc.) must be specified at the level of the law in full, clear, precisely with respect to each type of the local tax and due. Just such an approach is in conformity with the constitutional provision on setting of local taxes and dues in accordance with the law and is directed to the protection of the constitutional rights and lawful interests of the taxpayers - citizens and organizations. In 2004, as it was revealed by the Constitutional Court, certain local Councils of deputies (for example, Pukhovichy, Postavy and Verkhnedvinsk regional Councils of deputies) while setting of local taxes and dues have been outside their competence.
Analysis of the legislation shall signify the presence in it of the gaps, and the removal of them promotes realization of the constitutional rights of citizens over which the citizens are deprived of the possibility of realization of the constitutional rights of citizens. Thus, under the Law "On economic insolvency (bankruptcy)" the Government, in particular, had to determine the procedure of compensation for the damage caused the life and health of the citizens in case of transfer of the right of the natural person (in case of bankruptcy of a legal entity which is bound to compensate for this damage) in sum of capitalized periodical payments from the debtor in the Republic of Belarus. Therefore, the specified in the legislation procedure of compensation for the damage has been related only to the industrial accidents and occupational diseases, but there had been no specification of the procedure as regards the compensation for the damage caused the life and health of a natural person whom it was caused due to the performance of the labour obligations.
With the purpose of creation of the legislation, which shall meet the requirements of the Basic Law, it is necessary to regulate the institute of expert examination of draft enforceable enactments. In a number of cases the expert examination is in the formal nature, there is no practice of liability of the authors of the drafts of enforceable enactments for the quality, economic motivation and consequences of adoption of the proposing drafts. Ambiguity and uncertainty of the provisions of those acts, their contradictoriness are resulted not only in the violation of the rights of citizens and economic entities, but also in arbitrariness, bureaucratism and misuses of certain officials who in such a situation may act not in accordance with the law, but according to the subjective understanding of the law.
Strict observance in law creating activities of all the requirements and rules of logic shall be the important instrument for the progress of the organization of the legislation. Logic expert examination of the drafts of the enforceable enactments shall make it possible to remove of logical errors, to correct a draft, to elaborate recommendations as regards the improvement of the logical structure of the draft.
It is still actual the problem of prognostication of the consequences of adoption of enforceable enactments. As a rule, there is no such a prognostication in the documents attached to the draft of an enforceable enactment. At present, it is a rather low level of the work as regards revealing and forming of public opinion due to projected adoption of the acts of the legislation of social significance. For any act of the legislation it shall be important to count up its law and economic efficiency and possible social, criminological and other consequences.
Under Article 1 of the Law "On Constitutional Court of the Republic of Belarus" the Constitutional Court shall verify not only the constitutionality of enforceable enactments but shall also strengthen the lawfulness in law making and law application. Verification of the constitutionality of enforceable enactments is impossible without estimation of law applying practice, understanding of the meaning of this or that norm of the legislation by the law players, which, unfortunately, very often is not uniform.
It should be admitted that in the system of legislation the contradictions often have latent nature and after their reveal in practice may be subject to removed by way of use of various law means, including by way of correction of the legislation and its relevant interpretation. Different law application is able to lead to the fact that the same law may have mixed application in different instances and in different regions. Such a practice of application of the law shall misrepresent significantly its essence, shall violate the principle of equality of all before the law. In this connection, the most important task is elaboration of the methods of analysis of enforceable enactments in order to reveal contradictions in them.
Implementation of the norms of legislation must be principally perfect in the criminal law field. Thus, as a result of consideration of numerous of complaints of the convicted persons on non-application with respect to them of the rule of retrospective action of new more mild criminal law in instances of lowering of minimum limits of penalty prescribed them for the commitment of the crime or, if more mild penalties are included in the sanction of the article, the Constitutional Court has made analysis of the norms of the laws regulating the procedure of application of the specified rule (Article 5 of the Law of 18 July 2000 "On enforcement of the Criminal Code of the Republic of Belarus", point 2 of Article 4 of the Law of 22 July 2003 "On making alterations and addenda into the Criminal Code and the Criminal Code of Procedure of the Republic of Belarus". The Constitutional Court in its Decision of 21 October 2003 has concluded that the norms of those laws shall make it possible to apply the rule on retrospective action of the criminal law in full, including in the above specified instances. The given position was supported by the Commission on National Security of the House of Representatives of the National Assembly of the Republic of Belarus. The Constitutional Court shall emphasize as a positive step the fact that notwithstanding the delay till more than one year after the Court adopted its decision, the judicial practice as a result is oriented to the revision of sentences in the given instances.
The analysis made by the Constitutional Court of the Law of 8 January 2004 "On amnesty of certain categories of persons committed crimes" has permitted to secure execution of the envisaged in it provision on cutting down the term of penalty up to one year. Article 10 of the specified Law had not been subject to application with respect to persons convicted during the period of time (six months) fixed for execution of the Law on amnesty, the sentences with respect to whom were subject to repeal, and new penalties have been prescribed after expiry of the term in question, although those persons, in the opinion of the Constitutional Court, have already acquired the right to amnesty.
Analysis of practice shall reveal the problems of the legislation, which seem to be of little significance at the stage of adoption of the law. The important role in strengthening the constitutional legality shall be assigned to the monitoring of law applying practice. At present, to one or another extent the monitoring is carrying out by all the state bodies, including the ministries, the state committees, other subjects of state power, scientific institutions. However, very often such an analysis is rounding off by the evaluation of the work within a department and there are no regular cardinal steps as regards its improvement. Taking into account the necessity of extending of a system view on the existing problems, in the opinion of the Constitutional Court it would be expedient to entrust one of the subject of power with making general analysis of law applying practice in the Republic of Belarus or this function may be performed by the Constitutional Court as the body specially created for the strengthening of legality in law creation and law enforcement.
The Constitutional Court deems that the improvement of the legislation and the practice of its application taking into account the modern requirements, their adequacy with the undergoing conditions of development of society shall be the most important factor of stability and rule and order, strengthening of constitutional legality, confidence in the state and in the institutes of law.
* * *
The Present Message was adopted at the session of the Constitutional Court of the Republic of Belarus of 2 February 2005.
Presiding Officer —
Chairman of the
of the