24 June 2005 № D-186/2005
The Constitutional Court of the Republic of Belarus comprising of the Presiding Officer - Chairman of the Constitutional Court G.A. Vasilevich, judges T.S. Boiko, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, G.B. Shishko, V.Z. Shuklin has examined on the grounds of Article 40 and part one of Article 116 of the Constitution of the Republic of Belarus applications of convicts with appeals against non-application with respect to them of amnesty, found the following.
Article 10 of the Law of the Republic of Belarus of 8 January 2004 "On amnesty of certain categories of persons who committed crimes" stipulates the possibility of release from punishment in parts for the term of one year:
persons who were prescribed imprisonment;
persons who were prescribed punishment as restriction of freedom (Article 55 of the Criminal Code of the Republic of Belarus (hereinafter is also referred to as CC) and convicts on parole with obligatory involvement to labour (Article 231 of CC of 1960);
persons for whom non-served part of imprisonment was changed for the punishment as restriction of liberty and correctional labour (Article 91 of CC) and persons who released on parole with obligatory involvement to labour (Article 512 of CC of 1960);
servicemen who are prescribed the punishment as transferring to disciplinary military unit.
The given Article shall also specify the possibility of release from punishment of above listed persons, who at the date of examination of materials on application of amnesty before expiration of the term of punishment have less than one year.
According to Article 13 of the above mentioned Law within its jurisdiction are persons who committed crimes before the enforcement of the Law in question, both persons convicted and non-convicted by the courts of the Republic of Belarus the sentences with respect to whom shall be subject to consideration under the procedure of cassation or supervision. Convicted persons who committed crimes before the enforcement of the Law in question and with respect to whom the sentences were given before the expiration of the term fixed by Article 22 of the Law at issues are also within the jurisdiction of Article 10 of the given Law.
Similar provisions are contained in the relevant Articles of the Law of the Republic of Belarus of 5 May 2005 "On amnesty due to 60 Victory Anniversary in Great Patriotic War 1941 - 1945".
There are the complaints to the Constitutional Court of the convicts against non-application to them the amnesty as reduction of the term of serving the prescribed sentence up to one year in instances when the sentences with respect to them were delivered before the adoption of the law on amnesty or during the period of its execution and then were repealed under the procedure of supervision and new sentences were prescribed after the expiration of the period of time for execution of the law on amnesty.
As regards the issues related to application of the laws on amnesty, the Constitutional Court has already adopted decisions, which found support of both the Parliament of the Republic of Belarus and the Procurator' Office of the Republic of Belarus and were realized later on in the laws on amnesty.
In its Decision of 17 November 2000 the Constitutional Court has formed position under which the right to amnesty shall have the convicted persons with respect to whom the sentences are not effective as a result of their cassation appeal (protest). The Constitutional Court in its Decision of 11 January 2002 has confirmed the right to amnesty of the convicted persons the effective sentences with respect to whom were subject to review under the procedure of supervision.
This position of the Constitutional Court is stipulated in the laws on amnesty adopted of 15 July 2002, 8 January 2004 and of 5 May 2005.
Due to the complaints of the convicts to the Constitutional Court against non-application to them of Article 10 of the Law of the Republic of Belarus of 8 January 2004 "On amnesty of certain categories of persons who committed crimes" (hereinafter is also referred to as Law of 8 January 2004) in instances, if the sentences delivered with respect to them before the enforcement of the law on amnesty or during the period of time of its execution were subject to revision and new sentences were prescribed after expiration of the term for execution of the law on amnesty, the Constitutional Court has adopted Decision of 9 November 2004 which was forwarded to the Prosecutor General of the Republic of Belarus. Decision shall also emphasize that the persons who committed crimes before enforcement of the law on amnesty and convicted before or within the period of execution of this law shall have the right to amnesty, even if subsequently the sentences with respect to them were subject to reconsideration. This position of the Constitutional Court was supported by the Prosecutor's Office of the Republic of Belarus, and the issue on application of amnesty found its positive solution with respect to concrete persons whose complaints were the grounds for adoption of the specified Decision (letter of 10 February 2005 No. 17/102-2004 (4,5- 2005).
At the same time, the Constitutional Court still receives the complaints of the convicts and they signify about refusal in thir right to amnesty in the abovementioned instances. Thus, Zh. and T. were sentenced of 24 December 2003, i.e. before adoption of the Law of 8 January 2004, but their sentence was repealed under the procedure of supervision and the new sentence was given after expiration of the term of execution of the Law in question. Court of Zheleznodorozhny district of the city of Gomel which delivered repeated sentence with respect to those persons has applied to them Article 10 of the Law envisaging reduction of the term of punishment up to one year. This Decision found consent of Judicial Board on criminal cases of Gomel oblast Court. However, Presidium of the same court has excluded from the sentence the indication on application of amnesty to Zh. and T. with making the reference that the repeated sentence of the court was delivered after expiration of the six months period, i.e. the term for execution of the law on amnesty. Appeals of the convicts to the Supreme Court of the Republic of Belarus and to the Prosecutor's Office of the Republic of Belarus as regards application to them of Article 10 of the Law of 8 January 2004 were remained without satisfaction.
In the opinion of the Constitutional Court, such an approach of the law applier is not in line with the provision of part one of Article 13 of the Law of 8 January 2004 under which this Law covers both persons convicted and non-convicted by the courts of the Republic of Belarus the sentences with respect to whom shall be subject to consideration under the procedure of cassation or supervision.
The Constitutional Court recognizes to be obvious the fact that the persons who committed crimes before the enforcement of the Law of 8 January 2004 and the convicts before or within the period of execution of the Law have already acquired the right to amnesty which may not be restricted by the circumstance that the sentences delivered with respect to them were subject to further repeal, and new sentences were given after expiration of the term of execution of the Law on amnesty. Adoption of such a Decision is in conformity with part three of Article 20 of the given Law, which assumes the possibility of application of amnesty also after expiration of six months period of time fixed by Article 22 of the Law. The Constitutional Court has already pay attention to this circumstance in its Decisions.
The Constitutional Court deems that for the purposes of observance of the constitutional principle of equality such an approach must be secured in all the other similar cases of application of the laws on amnesty.
On the grounds of above stated and guiding by Article 40, part one of Article 116 of the Constitution, Articles 7, 36, 38, 40, 401 of the Law "On the Constitutional Court of the Republic of Belarus", the Constitutional Court
RULED:
1. To propose the Supreme Court of the Republic of Belarus and to the Prosecutor's Office of the Republic of Belarus to secure unique practice of application of the laws on amnesty under which the persons who committed crimes before the enforcement of the law on amnesty and the convicts before its enforcement or within the period of its execution shall have the right to reduce the term of punishment up to one year no matter weather their sentences were subject to repeal afterwards, and new sentences were given after the expiration of the period of time for execution of the law on amnesty, because those persons have already acquired the legal right to amnesty.
2. To forward the complaints of the convicted persons to the Supreme Court of the Republic of Belarus and to the Prosecutor's Office of the Republic of Belarus for taking decision on application of amnesty according to the law and according to Decisions of the Constitutional Court of the Republic of Belarus as regards the given issue.
3.The present Decision shall come into legal force from the date of its adoption.
4. To publish the present Decision in accordance with the legislation.
Presiding Officer —
Chairman of the
of the